Federal Register / Vol. 75, No. 86 / Wednesday, May 5, 2010 / Notices 24619 

50 5 U.S.C. 601 et seq. 51 66 FR 42256, 42268 (Aug. 10, 2001). 52 7 U.S.C. 1a(29). 

1 74 FR 52194 (October 9, 2009). 

2 Incorporated as Title XIII of the Food, 

Conservation and Energy Act of 2008, Public Law 

110–246, 122 Stat. 1624 (June 18, 2008). 

manipulation or other disruptions to 

market integrity, both on the ECM itself 

and in any related futures contracts 

trading on DCMs. An Order fining that 

a particular contract is a SPDC triggers 

this increased oversight and imposes 

obligations on the ECM calculated to 

accomplish this goal. The increased 

oversight engendered by the issue of a 

SPDC Order increases transparency and 

helps to ensure fair competition among 

ECMs and DCMs trading similar 

products and competing for the same 

business. Moreover, the ECM on which 

the SPDC is traded must assume, with 

respect to that contract, all the 

responsibilities and obligations of a 

registered entity under the CEA and 

Commission regulations. Additionally, 

the ECM must comply with nine core 

principles established by section 2(h)(7) 

of the Act—including the obligation to 

establish position limits and/or 

accountability standards for the SPDC. 

Amendments to section 4(i) of the CEA 

authorize the Commission to require 

reports for SPDCs listed on ECMs. These 

increased responsibilities, along with 

the CFTC’s increased regulatory 

authority, subject the ECM’s risk 

management practices to the 

Commission’s supervision and oversight 

and generally enhance the financial 

integrity of the markets. 

The Commission has concluded that 

ICE’s TZS contract, which is the subject 

of the attached Order, is not a SPDC; 

accordingly, the Commission’s Order 

imposes no additional costs and no 

additional statutorily or regulatory 

mandated responsibilities on the ECM. 

c. Regulatory Flexibility Act 

The Regulatory Flexibility Act 

(‘‘RFA’’) 50 requires that agencies 

consider the impact of their rules on 

small businesses. The requirements of 

CEA section 2(h)(7) and the Part 36 

rules affect exempt commercial markets. 

The Commission previously has 

determined that exempt commercial 

markets are not small entities for 

purposes of the RFA.51 Accordingly, the 

Chairman, on behalf of the Commission, 

hereby certifies pursuant to 5 U.S.C. 

605(b) that this Order, taken in 

connection with section 2(h)(7) of the 

Act and the Part 36 rules, will not have 

a significant impact on a substantial 

number of small entities. 

V. Order 

a. Order Relating to the Zone 6-NY 

Financial Basis Contract 

After considering the complete record 

in this matter, including the comment 

letters received in response to its 

request for comments, the Commission 

has determined to issue the following 

Order: 

The Commission, pursuant to its 

authority under section 2(h)(7) of the 

Act, hereby determines that the Zone 6- 

NY Financial Basis contract, traded on 

the IntercontinentalExchange, Inc., does 

not at this time satisfy the material price 

reference, price linkage and material 

liquidity criteria for significant price 

discovery contracts. Consistent with this 

determination, the 

IntercontinentalExchange, Inc., is not 

considered a registered entity 52 with 

respect to the TZS Financial Basis 

contract and is not subject to the 

provisions of the Commodity Exchange 

Act applicable to registered entities. 

Further, the obligations, requirements 

and timetables prescribed in 

Commission rule 36.3(c)(4) governing 

core principle compliance by the 

IntercontinentalExchange, Inc., are not 

applicable to the Zone 6-NY Financial 

Basis contract with the issuance of this 

Order. 

This Order is based on the 

representations made to the 

Commission by the 

IntercontinentalExchange, Inc., dated 

July 27, 2009, and November 13, 2009, 

and other supporting material. Any 

material change or omissions in the 

facts and circumstances pursuant to 

which this order is granted might 

require the Commission to reconsider its 

current determination that the Zone 6- 

NY Financial Basis contract is not a 

significant price discovery contract. 

Additionally, to the extent that it 

continues to rely upon the exemption in 

Section 2(h)(3) of the Act, the 

IntercontinentalExchange, Inc., must 

continue to comply with all of the 

applicable requirements of Section 

2(h)(3) and Commission Regulation 

36.3. 

Issued in Washington, DC, on April 28, 

2010, by the Commission. 

David A. Stawick, 

Secretary of the Commission. 

[FR Doc. 2010–10575 Filed 5–4–10; 8:45 am] 

BILLING CODE P 

COMMODITY FUTURES TRADING 

COMMISSION 

Order Finding That the Permian 

Financial Basis Contract Traded on the 

IntercontinentalExchange, Inc., Does 

Not Perform a Significant Price 

Discovery Function 

AGENCY: Commodity Futures Trading 

Commission. 

ACTION: Final Order. 

SUMMARY: On October 9, 2009, the 

Commodity Futures Trading 

Commission (‘‘CFTC’’ or ‘‘Commission’’) 

published for comment in the Federal 

Register 1 a notice of its intent to 

undertake a determination whether the 

Permian Financial Basis (‘‘PER’’) 

contract traded on the 

IntercontinentalExchange, Inc. (‘‘ICE’’), 

an exempt commercial market (‘‘ECM’’) 

under sections 2(h)(3)–(5) of the 

Commodity Exchange Act (‘‘CEA’’ or the 

‘‘Act’’), performs a significant price 

discovery function pursuant to section 

2(h)(7) of the CEA. The Commission 

undertook this review based upon an 

initial evaluation of information and 

data provided by ICE as well as other 

available information. The Commission 

has reviewed the entire record in this 

matter, including all comments 

received, and has determined to issue 

an order finding that the PER contract 

does not perform a significant price 

discovery function. Authority for this 

action is found in section 2(h)(7) of the 

CEA and Commission rule 36.3(c) 

promulgated thereunder. 

DATES: Effective date: April 28, 2010. 

FOR FURTHER INFORMATION CONTACT: 

Gregory K. Price, Industry Economist, 

Division of Market Oversight, 

Commodity Futures Trading 

Commission, Three Lafayette Centre, 

1155 21st Street, NW., Washington, DC 

20581. Telephone: (202) 418–5515. 

E-mail: gprice@cftc.gov; or Susan 

Nathan, Senior Special Counsel, 

Division of Market Oversight, same 

address. Telephone: (202) 418–5133. Email: snathan@cftc.gov. 

SUPPLEMENTARY INFORMATION: 

I. Introduction 

The CFTC Reauthorization Act of 

2008 (‘‘Reauthorization Act’’) 2

significantly broadened the CFTC’s 

regulatory authority with respect to 

ECMs by creating, in section 2(h)(7) of 

the CEA, a new regulatory category— 

ECMs on which significant price 


sroberts on DSKD5P82C1PROD with NOTICES
24620 Federal Register / Vol. 75, No. 86 / Wednesday, May 5, 2010 / Notices 

3 7 U.S.C. 1a(29). 

4 74 FR 12178 (Mar. 23, 2009); these rules became 

effective on April 22, 2009. 

5Public Law 110–246 at 13203; Joint Explanatory 

Statement of the Committee of Conference, H.R. 

Rep. No. 110–627, 110 Cong., 2d Sess. 978, 986 

(Conference Committee Report). See also 73 FR 

75888, 75894 (Dec. 12, 2008). 

6For an initial SPDC, ECMs have a grace period 

of 90 calendar days from the issuance of a SPDC 

determination order to submit a written 

demonstration of compliance with the applicable 

core principles. For subsequent SPDCs, ECMs have 

a grace period of 30 calendar days to demonstrate 

core principle compliance. 

7The Commission’s Part 36 rules establish, 

among other things, procedures by which the 

Commission makes and announces its 

determination whether a specific ECM contract 

serves a significant price discovery function. Under 

those procedures, the Commission publishes a 

notice in the Federal Register that it intends to 

undertake a determination whether a specified 

agreement, contract or transaction performs a 

significant price discovery function and to receive 

written data, views and arguments relevant to its 

determination from the ECM and other interested 

persons. 

8 IECA describes itself as an ‘‘association of 

leading manufacturing companies’’ whose 

membership ‘‘represents a diverse set of industries 

including: Plastics, cement, paper, food processing, 

brick, chemicals, fertilizer, insulation, steel, glass, 

industrial gases, pharmaceutical, aluminum and 

brewing.’’ WGCEF describes itself as ‘‘a diverse 

group of commercial firms in the domestic energy 

industry whose primary business activity is the 

physical delivery of one or more energy 

commodities to customers, including industrial, 

commercial and residential consumers’’ and whose 

membership consists of ‘‘energy producers, 

marketers and utilities.’’ McGraw-Hill, through its 

division Platts, compiles and calculates monthly 

natural gas price indices from natural gas trade data 

submitted to Platts by energy marketers. Platts 

includes those price indices in its monthly Inside 

FERC’s Gas Market Report (‘‘Inside FERC’’). ICE is 

an exempt commercial market, as noted above. EI 

is an economic consulting firm with offices located 

in Washington, DC, and San Francisco, CA. NGSA 

is an industry association comprised of natural gas 

producers and marketers. FERC is an independent 

federal regulatory agency that, among other things, 

regulates the interstate transmission of natural gas, 

oil and electricity. FIEG describes itself as an 

association of investment and commercial banks 

who are active participants in various sectors of the 

natural gas markets, ‘‘including acting as marketers, 

lenders, underwriters of debt and equity securities, 

and proprietary investors.’’ The comment letters are 

available on the Commission’s Web site: http:// 

www.cftc.gov/lawandregulation/federalregister/ 

federalregistercomments/2009/09-022.html. 9FERC stated that the PER contract is cash settled 

and does not contemplate the actual physical 

delivery of natural gas. Accordingly, FERC 

expressed the opinion that a determination by the 

Commission that a contract performs a significant 

price discovery function ‘‘would not appear to 

conflict with FERC’s exclusive jurisdiction under 

the Natural Gas Act (NGA) over certain sales of 

natural gas in interstate commerce for resale or with 

its other regulatory responsibilities under the NGA’’ 

and further that, ‘‘FERC staff will continue to 

monitor for any such conflict * * * [and] advise 

the CFTC’’ should any such potential conflict arise. 

CL 07. 

discovery contracts (‘‘SPDCs’’) are 

traded—and treating ECMs in that 

category as registered entities under the 

CEA.3 The legislation authorizes the 

CFTC to designate an agreement, 

contract or transaction as a SPDC if the 

Commission determines, under criteria 

established in section 2(h)(7), that it 

performs a significant price discovery 

function. When the Commission makes 

such a determination, the ECM on 

which the SPDC is traded must assume, 

with respect to that contract, all the 

responsibilities and obligations of a 

registered entity under the Act and 

Commission regulations, and must 

comply with nine core principles 

established by new section 2(h)(7)(C). 

On March 16, 2009, the CFTC 

promulgated final rules implementing 

the provisions of the Reauthorization 

Act.4 As relevant here, rule 36.3 

imposes increased information reporting 

requirements on ECMs to assist the 

Commission in making prompt 

assessments whether particular ECM 

contracts may be SPDCs. In addition to 

filing quarterly reports of its contracts, 

an ECM must notify the Commission 

promptly concerning any contract 

traded in reliance on the exemption in 

section 2(h)(3) of the CEA that averaged 

five trades per day or more over the 

most recent calendar quarter, and for 

which the exchange sells its price 

information regarding the contract to 

market participants or industry 

publications, or whose daily closing or 

settlement prices on 95 percent or more 

of the days in the most recent quarter 

were within 2.5 percent of the 

contemporaneously determined closing, 

settlement or other daily price of 

another contract. 

Commission rule 36.3(c)(3) 

established the procedures by which the 

Commission makes and announces its 

determination whether a particular ECM 

contract serves a significant price 

discovery function. Under those 

procedures, the Commission will 

publish notice in the Federal Register 

that it intends to undertake an 

evaluation whether the specified 

agreement, contract or transaction 

performs a significant price discovery 

function and to receive written views, 

data and arguments relevant to its 

determination from the ECM and other 

interested persons. Upon the close of 

the comment period, the Commission 

will consider, among other things, all 

relevant information regarding the 

subject contract and issue an order 

announcing and explaining its 

determination whether or not the 

contract is a SPDC. The issuance of an 

affirmative order signals the 

effectiveness of the Commission’s 

regulatory authorities over an ECM with 

respect to a SPDC; at that time such an 

ECM becomes subject to all provisions 

of the CEA applicable to registered 

entities.5 The issuance of such an order 

also triggers the obligations, 

requirements and timetables prescribed 

in Commission rule 36.3(c)(4).6

II. Notice of Intent To Undertake SPDC 

Determination 

On October 9, 2009, the Commission 

published in the Federal Register notice 

of its intent to undertake a 

determination whether the PER contract 

performs a significant price discovery 

function and requested comment from 

interested parties.7 Comments were 

received from Industrial Energy 

Consumers of America (‘‘IECA’’), 

Working Group of Commercial Energy 

Firms (‘‘WGCEF’’), Platts, ICE, 

Economists Incorporated (‘‘EI’’), Natural 

Gas Supply Association (‘‘NGSA’’), 

Federal Energy Regulatory Commission 

(‘‘FERC’’) and Financial Institutions 

Energy Group (‘‘FIEG’’).8 The comment 

letters from FERC9 and Platts did not 

directly address the issue of whether or 

not the PER contract is a SPDC; IECA 

expressed the opinion that the PER 

contract did perform a significant price 

discovery function; and thus, should be 

subject to the requirements of the core 

principles enumerated in Section 2(h)(7) 

of the Act, but did not elaborate on its 

reasons for saying so or directly address 

any of the criteria. The remaining 

comment letters raised substantive 

issues with respect to the applicability 

of section 2(h)(7) to the PER contract 

and generally expressed the opinion 

that the PER contract is not a SPDC 

because it does not meet the price 

linkage, material price reference and 

material liquidity criteria for SPDC 

determination. These comments are 

more extensively discussed below, as 

applicable. 

III. Section 2(h)(7) of the CEA 

The Commission is directed by 

section 2(h)(7) of the CEA to consider 

the following criteria in determining a 

contract’s significant price discovery 

function: 

• Price Linkage—the extent to which 

the agreement, contract or transaction 

uses or otherwise relies on a daily or 

final settlement price, or other major 

price parameter, of a contract or 

contracts listed for trading on or subject 

to the rules of a designated contract 

market (‘‘DCM’’) or derivatives 

transaction execution facility (‘‘DTEF’’), 

or a SPDC traded on an electronic 

trading facility, to value a position, 

transfer or convert a position, cash or 

financially settle a position, or close out 

a position. 

• Arbitrage—the extent to which the 

price for the agreement, contract or 


sroberts on DSKD5P82C1PROD with NOTICES
Federal Register / Vol. 75, No. 86 / Wednesday, May 5, 2010 / Notices 24621 

10 In its October 9, 2009, Federal Register release, 

the Commission identified material price reference, 

price linkage and material liquidity as the possible 

criteria for SPDC determination of the PER contract. 

Arbitrage was not identified as a possible criterion. 

As a result, arbitrage will not be discussed further 

in this document and the associated Order. 

11 17 CFR part 36, Appendix A. 

12The term ‘‘hub’’ refers to a juncture where two 

or more natural gas pipelines are connected. Hubs 

also serve as pricing points for natural gas at the 

particular locations. 

13See http://www.eia.doe.gov/pub/oil_gas/ 

natural_gas/feature_articles/2009/ngmarketcenter/ 

ngmarketcenter.pdf. 

transaction is sufficiently related to the 

price of a contract or contracts listed for 

trading on or subject to the rules of a 

designated DCM or DTEF, or a SPDC 

traded on or subject to the rules of an 

electronic trading facility, so as to 

permit market participants to effectively 

arbitrage between the markets by 

simultaneously maintaining positions or 

executing trades in the contracts on a 

frequent and recurring basis. 

• Material price reference—the extent 

to which, on a frequent and recurring 

basis, bids, offers or transactions in a 

commodity are directly based on, or are 

determined by referencing or 

consulting, the prices generated by 

agreements, contracts or transactions 

being traded or executed on the 

electronic trading facility. 

• Material liquidity—the extent to 

which the volume of agreements, 

contracts or transactions in a 

commodity being traded on the 

electronic trading facility is sufficient to 

have a material effect on other 

agreements, contracts or transactions 

listed for trading on or subject to the 

rules of a DCM, DTEF or electronic 

trading facility operating in reliance on 

the exemption in section 2(h)(3). 

Not all criteria must be present to 

support a determination that a 

particular contract performs a 

significant price discovery function, and 

one or more criteria may be inapplicable 

to a particular contract.10 Moreover, the 

statutory language neither prioritizes the 

criteria nor specifies the degree to 

which a SPDC must conform to the 

various criteria. In Guidance issued in 

connection with the Part 36 rules 

governing ECMs with SPDCs, the 

Commission observed that these criteria 

do not lend themselves to a mechanical 

checklist or formulaic analysis. 

Accordingly, the Commission has 

indicated that in making its 

determinations it will consider the 

circumstances under which the 

presence of a particular criterion, or 

combination of criteria, would be 

sufficient to support a SPDC 

determination.11 For example, for 

contracts that are linked to other 

contracts or that may be arbitraged with 

other contracts, the Commission will 

consider whether the price of the 

potential SPDC moves in such harmony 

with the other contract that the two 

markets essentially become 

interchangeable. This co-movement of 

prices would be an indication that 

activity in the contract had reached a 

level sufficient for the contract to 

perform a significant price discovery 

function. In evaluating a contract’s price 

discovery role as a price reference, the 

Commission will consider the extent to 

which, on a frequent and recurring 

basis, bids, offers or transactions are 

directly based on, or are determined by 

referencing, the prices established for 

the contract. 

IV. Findings and Conclusions 

a. The Permian Financial Basis (PER) 

Contract and the SPDC Indicia 

The Permian Financial Basis (PER) 

contract is cash settled based on the 

difference between the bidweek price 

index for a particular calendar month at 

El Paso Natural Gas Company’s Permian 

Basin, as published in Platts’ Inside 

FERC’s Gas Market Report, and the final 

settlement price of the New York 

Mercantile Exchange’s (‘‘NYMEX’s’’) 

physically-delivered Henry Hub natural 

gas futures contract for the same 

calendar month. The Platts bidweek 

price, which is published monthly, is 

based on a survey of cash market traders 

who voluntarily report to Platts data on 

their fixed-price transactions conducted 

during the last five business days of the 

month for physical delivery of natural 

gas at the Permian Basin; such bidweek 

transactions specify the delivery of 

natural gas on a uniform basis 

throughout the following calendar 

month at the agreed upon rate. The 

Platts bidweek index is published on 

the first business day of the month in 

which the gas flows. The size of the PER 

contract is 2,500 million British thermal 

units (‘‘mmBtu’’), and the unit of trading 

is any multiple of 2,500 mmBtu. The 

PER contract is listed for up to 72 

consecutive calendar months. 

The Henry Hub,12 which is located in 

Erath, Louisiana, is the primary cash 

market trading and distribution center 

for natural gas in the United States. It 

also is the delivery point and pricing 

basis for the NYMEX’s actively traded, 

physically-delivered natural gas futures 

contract, which is the most important 

pricing reference for natural gas in the 

United States. The Henry Hub, which is 

operated by Sabine Pipe Line, LLC, 

serves as a juncture for 13 different 

pipelines. These pipelines bring in 

natural gas from fields in the Gulf Coast 

region and ship it to major consumption 

centers along the East Coast and 

Midwest. The throughput shipping 

capacity of the Henry Hub is 1.8 trillion 

mmBtu per day. 

In addition to the Henry Hub, there 

are a number of other locations where 

natural gas is traded. In 2008, there were 

33 natural gas market centers in North 

America.13 Some of the major trading 

centers include Alberta, Northwest 

Rockies, Southern California border and 

the Houston Ship Channel. For 

locations that are directly connected to 

the Henry Hub by one or more pipelines 

and where there typically is adequate 

shipping capacity, the price at the other 

locations usually directly tracks the 

price at the Henry Hub, adjusted for 

transportation costs. However, at other 

locations that are not directly connected 

to the Henry Hub or where shipping 

capacity is limited, the prices at those 

locations often diverge from the Henry 

Hub price. Furthermore, one local price 

may be significantly different than the 

price at another location even though 

the two markets’ respective distances 

from the Henry Hub are the same. The 

reason for such pricing disparities is 

that a given location may experience 

supply and demand factors that are 

specific to that region, such as 

differences in pipeline shipping 

capacity, unusually high or low demand 

for heating or cooling or supply 

disruptions caused by severe weather. 

As a consequence, local natural gas 

prices can differ from the Henry Hub 

price by more than the cost of shipping 

and such price differences can vary in 

an unpredictable manner. 

The Permian Basin is located in 

western Texas and serves as the major 

source of natural gas for the Waha 

(EPGT) and Waha (DCP/Atmos) natural 

gas market centers. The supply of 

natural gas in the El Paso Natural Gas 

Company’s Permian Basin market comes 

from three sources: South of the Waha 

plant, the region south of the Keystone 

station to Waha, and the region south of 

the Plains station to Keystone. 

The El Paso Natural Gas Company 

operates the largest capacity natural gas 

pipeline within the southwest region of 

the United States. It has the capability 

to transport up to 6.2 billion cubic feet 

per day of gas originating from the 

Permian Basin and the San Juan Basin 

(located in southern Colorado). The El 

Paso Natural Gas Company’s southern 

system is the principal deliverer of 

natural gas to the southern leg of the 

Southern California Gas Company’s 

pipeline system at Blythe, California, 

which in turn provides a route for 


sroberts on DSKD5P82C1PROD with NOTICES
24622 Federal Register / Vol. 75, No. 86 / Wednesday, May 5, 2010 / Notices 

14See http://www.eia.doe.gov/pub/oil_gas/ 

natural_gas/analysis_publications/ngpipeline/ 

western.html. 

15See http://www.eia.doe.gov/pub/oil_gas/ 

natural_gas/feature_articles/2009/ngmarketcenter/ 

ngmarketcenter.pdf. 

16Basis contracts denote the difference in the 

price of natural gas at a specified location minus the 

price of natural gas at the Henry Hub. The 

differential can be either a positive or negative 

value. 

17As noted above, the Commission did not find 

an indication of arbitrage in connection with this 

contract; accordingly, that criterion was not 

discussed in reference to the PER contract. 

18The OTC Gas End of Day dataset includes daily 

settlement prices for natural gas contracts listed for 

all points in North America. 

19http://www.cftc.gov/ucm/groups/public/ 

@newsroom/documents/file/pr5403-07

_ecmreport.pdf. 

20 17 CFR part 36, Appendix A. 

21As noted above, IECA expressed the opinion 

that the PER contract met the criteria for SPDC 

determination but did not provide its reasoning. 

natural gas deliveries to the San Diego 

Gas & Electric Company system and 

exports to Mexico at several locations 

along the U.S.-Mexico border.14

The Waha (EPGT) and Waha (CDP/ 

Atmos) Texas Hubs, two market centers 

near the Permian Basin, had an 

estimated throughput capacity in 2008 

of 250 million cubic feet per day and 

300 million cubic feet per day, 

respectively. Moreover, the number of 

pipeline interconnections at each 

market center was 10 in 2008. Lastly, 

the pipeline interconnection capacities 

of the Waha (EPGT) and Waha (CDP/ 

Atmos) Texas Hubs in 2008 were 1.8 

billion million cubic feet per day and 

2.3 billion cubic feet per day, 

respectively.15 The Permian Basin is far 

removed from the Henry Hub and is not 

directly connected to the Henry Hub by 

an existing pipeline. 

The local price at the Permian Basin 

typically differs from the price at the 

Henry Hub. Thus, the price of the Henry 

Hub physically-delivered futures 

contract is an imperfect proxy for the 

PER price. Moreover, exogenous factors, 

such as adverse weather, can cause the 

PER gas price to differ from the Henry 

Hub price by an amount that is more or 

less than the cost of shipping, making 

the NYMEX Henry Hub futures contract 

even less precise as a hedging tool than 

desired by market participants. Basis 

contracts 16 allow traders to more 

accurately discover prices at alternative 

locations and hedge price risk that is 

associated with natural gas at such 

locations. In this regard, a position at a 

local price for an alternative location 

can be established by adding the 

appropriate basis swap position to a 

position taken in the NYMEX 

physically-delivered Henry Hub 

contract (or in the NYMEX or ICE Henry 

Hub look-alike contract, which cash 

settle based on the NYMEX physicallydelivered natural gas contract’s final 

settlement price). 

In its October 9, 2009, Federal 

Register notice, the Commission 

identified material price reference, price 

linkage, and material liquidity as the 

potential SPDC criteria applicable to the 

PER contract. Each of these criteria is 

discussed below.17

1. Material Price Reference Criterion 

The Commission’s October 9, 2009, 

Federal Register notice identified 

material price reference as a potential 

basis for a SPDC determination with 

respect to this contract. The 

Commission considered the fact that ICE 

sells its price data to market participants 

in a number of different packages which 

vary in terms of the hubs covered, time 

periods, and whether the data are daily 

only or historical. For example, ICE 

offers the ‘‘West Gas End of Day’’ and 

‘‘OTC Gas End of Day’’ 18 packages with 

access to all price data or just current 

prices plus a selected number of months 

(i.e., 12, 24, 36 or 48 months) of 

historical data. These two packages 

include price data for the PER contract. 

The Commission also noted that its 

October 2007 Report on the Oversight of 

Trading on Regulated Futures 

Exchanges and Exempt Commercial 

Markets (‘‘ECM Study’’) 19 found that in 

general, market participants view the 

ICE as a price discovery market for 

certain natural gas contracts. The study 

did not specify which markets 

performed this function; nevertheless, 

the Commission determined that the 

PER contract, while not mentioned by 

name in the ECM Study, might warrant 

further study. 

The Commission will rely on one of 

two sources of evidence—direct or 

indirect—to determine that the price of 

a contract was being used as a material 

price reference and therefore, serving a 

significant price discovery function.20

With respect to direct evidence, the 

Commission will consider the extent to 

which, on a frequent and recurring 

basis, cash market bids, offers or 

transactions are directly based on or 

quoted at a differential to, the prices 

generated on the ECM in question. 

Direct evidence may be established 

when cash market participants are 

quoting bid or offer prices or entering 

into transactions at prices that are set 

either explicitly or implicitly at a 

differential to prices established for the 

contract in question. Cash market prices 

are set explicitly at a differential to the 

section 2(h)(3) contract when, for 

instance, they are quoted in dollars and 

cents above or below the reference 

contract’s price. Cash market prices are 

set implicitly at a differential to a 

section 2(h)(3) contract when, for 

instance, they are arrived at after adding 

to, or subtracting from the section 

2(h)(3) contract, but then quoted or 

reported at a flat price. With respect to 

indirect evidence, the Commission will 

consider the extent to which the price 

of the contract in question is being 

routinely disseminated in widely 

distributed industry publications—or 

offered by the ECM itself for some form 

of remuneration—and consulted on a 

frequent and recurring basis by industry 

participants in pricing cash market 

transactions. 

Following the issuance of the Federal 

Register release, the Commission further 

evaluated the ICE’s data offerings and 

their use by industry participants. The 

El Paso Natural Gas Company’s Permian 

Basin hub is a major trading center but 

is not as important as other hubs, such 

as the Waha hub, for pricing natural gas. 

Although the Permian Basin is a 

major trading center for natural gas in 

the United States and, as noted, ICE 

sells price information for the PER 

contract, the Commission has found 

upon further evaluation that the cash 

market transactions are not being 

directly based or quoted as a differential 

to the PER contract nor is that contract 

routinely consulted by industry 

participants in pricing cash market 

transactions and thus does not meet the 

Commission’s Guidance for the material 

price reference criterion. Thus, the PER 

contract does not satisfy the direct price 

reference test for existence of material 

price reference. Furthermore, the 

Commission notes that publication of 

the PER contract’s prices is not indirect 

evidence material price reference. The 

PER contract’s prices are published with 

those of numerous other contracts, 

which are of more interest to market 

participants. Due to the lack of 

importance of the Permian Basin, the 

Commission has concluded that traders 

likely do not specifically purchase the 

ICE data packages for the PER contract’s 

prices and do not consult such prices on 

a frequent and recurring basis in pricing 

cash market transactions. 

i. Federal Register Comments 

As noted above, WGCEF, ICE, EI, 

NGSA and FIEG addressed the question 

of whether the PER contract met the 

material price reference criterion for a 

SPDC.21 The commenters argued that 

because the PER contract is cash-settled, 

it cannot truly serve as an independent 

‘‘reference price’’ for transactions in 

natural gas at this location. Rather, the 

commenters argue, the underlying cash 


sroberts on DSKD5P82C1PROD with NOTICES
Federal Register / Vol. 75, No. 86 / Wednesday, May 5, 2010 / Notices 24623 

22CL 04. 

23CL 05. 

24CL 02. 25Appendix A to the Part 36 rules. 

26The size of the NYMEX Henry Hub physicallydelivered natural gas futures contract is 10,000 

mmBtu. The PER contract has a trading unit of 

2,500 mmBtu, which is one-quarter the size of the 

NYMEX Henry Hub contract. 

27Supplemental data subsequently submitted by 

the ICE indicated that block trades are included in 

the on-exchange trades; block trades comprise 56 

percent of all transactions in the PER contract. 

price series against which the ICE PER 

contract is settled (in this case, the 

Platts bidweek price for natural gas at 

this location) is the authentic reference 

price and not the ICE contract itself. The 

Commission believes that this 

interpretation of price reference is too 

limiting in that it only considers the 

final index value on which the contract 

is cash settled after trading ceases. 

Instead, the Commission believes that a 

cash-settled derivatives contract could 

meet the price reference criterion if 

market participants ‘‘consult on a 

frequent and recurring basis’’ the 

derivatives contract when pricing 

forward, fixed-price commitments or 

other cash-settled derivatives that seek 

to ‘‘lock in’’ a fixed price for some future 

point in time to hedge against adverse 

price movements. 

ICE 22 also argued that the 

Commission appeared to base the case 

that the PER contract is potentially a 

SPDC on a disputable assertion. In 

issuing its notice of intent to determine 

whether the PER contract is a SPDC, the 

CFTC cited a general conclusion in its 

ECM Study ‘‘that certain market 

participants referred to ICE as a price 

discovery market for certain natural gas 

contracts.’’ ICE states that CFTC’s reason 

is ‘‘hard to quantify as the ECM report 

does not mention’’ this contract as a 

potential SPDC. ‘‘It is unknown which 

market participants made this statement 

in 2007 or the contracts that were 

referenced.’’ In response to the above 

comment, the Commission notes that it 

cited the ECM study’s general finding 

that some ICE natural gas contracts 

appear to be regarded as price discovery 

markets merely as an indicia that an 

investigation of certain ICE contracts 

may be warranted, and was not 

intended to serve as the sole basis for 

determining whether or not a particular 

contract meets the material price 

reference criterion. 

Both EI 23 and WGCEF 24 stated that 

publication of price data in a package 

format is a weak justification for 

material price reference. These 

commenters argue that market 

participants generally do not purchase 

ICE data sets for one contract’s prices, 

such as those for the PER contract. 

Instead, traders are interested in the 

settlement prices, so the fact that ICE 

sells the PER prices as part of a broad 

package is not conclusive evidence that 

market participants are buying the ICE 

data sets because they find the PER 

prices have substantial value to them. 

As mentioned above, the Commission 

notes that publication of the PER 

contract’s prices is not indirect evidence 

of routine dissemination. The PER 

contract’s prices are published with 

those of numerous other contracts, 

which are of more interest to market 

participants. Due to the lack of 

importance of the Permian Basin, the 

Commission has concluded that traders 

likely do not specifically purchase the 

ICE data packages for the PER contract’s 

prices and do not consult such prices on 

a frequent and recurring basis in pricing 

cash market transactions. 

ii. Conclusion Regarding Material Price 

Reference 

Based on the above, the Commission 

finds that the PER contract does not 

meet the material price reference 

criterion because cash market 

transactions are not priced on a frequent 

and recurring basis at a differential to 

the PER contract’s price (direct 

evidence). Moreover, while the ECM 

sells the PER contract’s price data to 

market participants, market participants 

likely do not specifically purchase the 

ICE data packages for the PER contract’s 

prices and do not consult such prices on 

a frequent and recurring basis in pricing 

cash market transactions (indirect 

evidence). 

2. Price Linkage Criterion 

In its October 9, 2009, Federal 

Register notice, the Commission 

identified price linkage as a potential 

basis for a SPDC determination with 

respect to the PER contract. In this 

regard, the final settlement of the PER 

contract is based, in part, on the final 

settlement price of the NYMEX’s 

physically-delivered natural gas futures 

contract, where the NYMEX is 

registered with the Commission as a 

DCM. 

The Commission’s Guidance on 

Significant Price Discovery Contracts 25

notes that a ‘‘price-linked contract is a 

contract that relies on a contract traded 

on another trading facility to settle, 

value or otherwise offset the pricelinked contract.’’ Furthermore, the 

Guidance notes that, ‘‘[f]or a linked 

contract, the mere fact that a contract is 

linked to another contract will not be 

sufficient to support a determination 

that a contract performs a significant 

price discovery function. To assess 

whether such a determination is 

warranted, the Commission will 

examine the relationship between 

transaction prices of the linked contract 

and the prices of the referenced 

contract. The Commission believes that 

where material liquidity exists, prices 

for the linked contract would be 

observed to be substantially the same as 

or move substantially in conjunction 

with the prices of the referenced 

contract.’’ Furthermore, the Guidance 

proposes a threshold price relationship 

such that prices of the ECM linked 

contract will fall within a 2.5 percent 

price range for 95 percent of 

contemporaneously determined closing, 

settlement or other daily prices over the 

most recent quarter. Finally, in the 

Guidance the Commission stated that it 

would consider a linked contract that 

has a trading volume equivalent to 5 

percent of the volume of trading in the 

contract to which it is linked to have 

sufficient volume to be deemed a SPDC 

(‘‘minimum threshold’’). 

To assess whether the PER contract 

meets the price linkage criterion, 

Commission staff obtained price data 

from ICE and performed the statistical 

tests cited above. Staff found that, while 

the PER contract price is determined, in 

part, by the final settlement price of the 

NYMEX physically-delivered natural 

gas futures contract (a DCM contract), 

the imputed PER location price (derived 

by adding the NYMEX Henry Hub 

Natural Gas price to the ICE PER basis 

price) is not within 2.5 percent of the 

settlement price of the corresponding 

NYMEX Henry Hub natural gas futures 

contract on 95 percent or more of the 

days. Specifically, during the third 

quarter of 2009, less than one percent of 

the Permian Basin natural gas prices 

derived from the ICE basis values were 

within 2.5 percent of the daily 

settlement price of the NYMEX Henry 

Hub futures contract. In addition, staff 

found that the PER contract fails to meet 

the volume threshold requirement. In 

particular, the total trading volume in 

the NYMEX Natural Gas contract during 

the third quarter of 2009 was 14,022,963 

contracts, with 5 percent of that number 

being 701,148 contracts. Trades on the 

ICE centralized market in the PER 

contract during the same period was 

48,450 contracts (equivalent to 12,112 

NYMEX contracts, given the size 

difference).26 Thus, centralized-market 

trades in the PER contract amounted to 

less than the minimum threshold.27

i. Federal Register Comments 

As noted above, WGCEF, ICE, EI, 

NGSA and FIEG addressed the question 


sroberts on DSKD5P82C1PROD with NOTICES
24624 Federal Register / Vol. 75, No. 86 / Wednesday, May 5, 2010 / Notices 

28As noted above, IECA expressed the opinion 

that the PER contract met the criteria for SPDC 

determination but did not provide its reasoning. 

29 74 FR 52194 (October 9, 2009). 

30Staff has advised the Commission that in its 

experience, a thinly-traded contract is, generally, 

one that has a quarterly trading volume of 100,000 

contracts or less. In this regard, in the third quarter 

of 2009, physical commodity futures contracts with 

trading volume of 100,000 contracts or fewer 

constituted less than one percent of total trading 

volume of all physical commodity futures contracts. 

31 In establishing guidance to illustrate how it 

will evaluate the various criteria, or combinations 

of criteria, when determining whether a contract is 

a SPDC, the Commission made clear that ‘‘material 

liquidity itself would not be sufficient to make a 

determination that a contract is a [SPDC], * * * but 

combined with other factors it can serve as a 

guidepost indicating which contracts are 

functioning as [SPDCs].’’ For the reasons discussed 

above, the Commission has found that the PER 

contract does not meet either the price linkage or 

material price reference criterion. In light of this 

finding and the Commission’s Guidance cited 

above, there is no need to evaluate further the 

material liquidity criteria since it cannot be used 

alone as a basis for a SPDC determination. 

32As noted above, IECA expressed the opinion 

that the PER contract met the criteria for SPDC 

determination but did not provide its reasoning. 

33 73 FR 75892 (December 12, 2008) 

34 In addition, both EI and ICE stated that the 

trades-per-day statistics that it provided to the 

Commission in its quarterly filing and which were 

cited in the Commission’s October 9, 2009, Federal 

Register notice includes 2(h)(1) transactions, which 

were not completed on the electronic trading 

platform and should not be considered in the SPDC 

determination process. The Commission staff asked 

ICE to review the data it sent in its quarterly filings; 

ICE confirmed that the volume data it provided and 

which the Commission cited includes only 

transaction data executed on ICE’s electronic 

trading platform. As noted above, supplemental 

of whether the PER contract met the 

price linkage criterion for a SPDC.28

Each of the commenters expressed the 

opinion that the PER contract did not 

appear to meet the above-discussed 

Commission guidance regarding the 

price relationship and/or the minimum 

volume threshold relative to the DCM 

contract to which the PER contract is 

linked. Based on its analysis discussed 

above, the Commission agrees with this 

assessment. 

ii. Conclusion Regarding the Price 

Linkage Criterion 

Based on the above, the Commission 

finds that the PER contract does not 

meet the price linkage criterion because 

it fails the price relationship and 

volume tests provided for in the 

Commission’s Guidance. 

3. Material Liquidity Criterion 

As noted above, in its October 9, 

2009, Federal Register notice, the 

Commission identified material price 

reference, price linkage and material 

liquidity as potential criteria for SPDC 

determination of the PER contract. To 

assess whether a contract meets the 

material liquidity criterion, the 

Commission first examines trading 

activity as a general measurement of the 

contract’s size and potential importance. 

If the Commission finds that the 

contract in question meets a threshold 

of trading activity that would render it 

of potential importance, the 

Commission will then perform a 

statistical analysis to measure the effect 

that the prices of the subject contract 

potentially may have on prices for other 

contracts listed on an ECM or a DCM. 

The total number of transactions 

executed on ICE’s electronic platform in 

the PER contract was 727 in the second 

quarter of 2009, resulting in a daily 

average of 11.4 trades. During the same 

period, the PER contract had a total 

trading volume of 49,200 contracts and 

an average daily trading volume of 768.8 

contracts. Moreover, open interest as of 

June 30, 2009, was 55,940 contracts, 

which included trades executed on 

ICE’s electronic trading platform, as 

well as trades executed off of ICE’s 

electronic trading platform and then 

brought to ICE for clearing. In this 

regard, ICE does not differentiate 

between open interest created by a 

transaction executed on its trading 

platform and that created by a 

transaction executed off its trading 

platform.29

In a subsequent filing dated 

November 13, 2009, ICE reported that 

total trading volume in the third quarter 

of 2009 was 48,450 contracts (or 734 

contracts on a daily basis). In term of 

number of transactions, 776 trades 

occurred in the third quarter of 2009 

(11.8 trades per day). As of September 

30, 2009, open interest in the PER 

contract was 53,981 contracts, which 

included trades executed on ICE’s 

electronic trading platform, as well as 

trades executed off of ICE’s electronic 

trading platform and then brought to 

ICE for clearing. 

As indicated above, the average 

number of trades per day in the second 

and third quarters of 2009 was only 

slightly above the minimum reporting 

level (5 trades per day). Moreover, 

trading activity in the PER contract, as 

characterized by total quarterly volume, 

indicates that the PER contract 

experiences trading activity similar to 

that of other thinly-traded contracts.30

Thus, the PER contract does not meet a 

threshold of trading activity that would 

render it of potential importance and no 

additional statistical analysis is 

warranted.31

i. Federal Register Comments 

As noted above, WGCEF, ICE, EI, 

NGSA and FIEG addressed the question 

of whether the PER contract met the 

material liquidity criterion for a SPDC.32

These commenters stated that the PER 

contract does not meet the material 

liquidity criterion for SPDC 

determination for a number of reasons. 

WGCEF, ICE and EI noted that the 

Commission’s Guidance had posited 

concepts of liquidity that generally 

assumed a fairly constant stream of 

prices throughout the trading day, and 

noted that the relatively low number of 

trades per day in the PER contract did 

not meet this standard of liquidity. The 

Commission observes that a continuous 

stream of prices would indeed be an 

indication of liquidity for certain 

markets but the Guidance also notes that 

‘‘quantifying the levels of immediacy 

and price concession that would define 

material liquidity may differ from one 

market or commodity to another.’’ 

WGCEF, FIEG and NGSA noted that 

the PER contract represents a 

differential, which does not affect other 

contracts, including the NYMEX Henry 

Hub contract and physical gas contracts. 

FIEG and WGCEF also noted that the 

PER contract’s trading volume 

represents only a fraction of natural gas 

trading. 

ICE opined that the Commission 

‘‘seems to have adopted a five-tradesper-day test to determine whether a 

contract is materially liquid. It is worth 

noting that ICE originally suggested that 

the CFTC use a five-trades-per-day 

threshold as the basis for an ECM to 

report trade data to the CFTC.’’ 

Furthermore, FIEG cautioned the 

Commission in using a reporting 

threshold as a measure of liquidity. In 

this regard, the Commission adopted a 

five-trades-per-day threshold as a 

reporting requirement to enable it to 

‘‘independently be aware of ECM 

contracts that may develop into 

SPDCs’’ 33 rather than solely relying 

upon an ECM on its own to identify any 

such potential SPDCs to the 

Commission. Thus, any contract that 

meets this threshold may be subject to 

scrutiny as a potential SPDC but this 

does not mean that the contract will be 

found to be a SPDC merely because it 

met the reporting threshold. 

ICE and EI proposed that the statistics 

provided by ICE were misinterpreted 

and misapplied by the Commission. In 

particular, ICE stated that the volume 

figures used in the Commission’s 

analysis (cited above) ‘‘include trades 

made in all months of each contract’’ as 

well as in strips of contract months, and 

a ‘‘more appropriate method of 

determining liquidity is to examine the 

activity in a single traded month or strip 

of a given contract.’’ 34 A similar 


sroberts on DSKD5P82C1PROD with NOTICES
Federal Register / Vol. 75, No. 86 / Wednesday, May 5, 2010 / Notices 24625 

data supplied by ICE confirmed that block trades 

are in addition to the trades that were conducted 

on the electronic platform; block trades comprise 

about 56 percent of all transactions in the PER 

contract. The Commission acknowledges that the 

open interest information it provided in its October 

9, 2009, Federal Register notice includes 

transactions made off the ICE platform. However, 

once open interest is created, there is no way for 

ICE to differentiate between ‘‘on-exchange’’ versus 

‘‘off-exchange’’ created positions, and all such 

positions are fungible with one another and may be 

offset in any way agreeable to the position holder 

regardless of how the position was initially created. 

35See 73 FR 75888, 75893 (Dec. 12, 2008). 

36 44 U.S.C. 3507(d). 37 7 U.S.C. 19(a). 

38 5 U.S.C. 601 et seq. 

39 66 FR 42256, 42268 (Aug. 10, 2001). 

argument was made by EI, which 

observed that the five-trades-per-day 

number ‘‘is highly misleading * * * 

because the contracts can be offered for 

as long as 120 months, [thus] the 

average per day for an individual 

contract may be less than 1 per day.’’ 

It is the Commission’s opinion that 

liquidity, as it pertains to the PER 

contract, is typically a function of 

trading activity in particular lead 

months and, given sufficient liquidity in 

such months, the ICE PER contract itself 

would be considered liquid. In any 

event, in light of the fact that the 

Commission has found that the PER 

contract does not meet the material 

price reference or price linkage criteria, 

according to the Commission’s 

Guidance, it would be unnecessary to 

evaluate whether the PER contract 

meets the material liquidity criterion 

since it cannot be used alone for SPDC 

determination. 

ii. Conclusion Regarding Material 

Liquidity 

For the reasons discussed above, the 

Commission has found that the PER 

contract does not meet the material 

liquidity criterion for a SPDC 

determination. 

4. Overall Conclusion 

After considering the entire record in 

this matter, including the comments 

received, the Commission has 

determined that the PER contract does 

not perform a significant price discovery 

function under the criteria established 

in section 2(h)(7) of the CEA. 

Specifically, the Commission has 

determined that the PER contract does 

not meet the material price reference, 

price linkage and material liquidity 

criteria at this time. Accordingly, the 

Commission will issue the attached 

Order declaring that the PER contract is 

not a SPDC. 

Issuance of this Order indicates that 

the Commission does not at this time 

regard ICE as a registered entity in 

connection with its PER contract.35

Accordingly, with respect to its PER 

contract, ICE is not required to comply 

with the obligations, requirements and 

timetables prescribed in Commission 

rule 36.3(c)(4) for ECMs with SPDCs. 

However, ICE must continue to comply 

with the applicable reporting 

requirements. 

IV. Related Matters 

a. Paperwork Reduction Act 

The Paperwork Reduction Act of 1995 

(‘‘PRA’’) 36 imposes certain requirements 

on Federal agencies, including the 

Commission, in connection with their 

conducting or sponsoring any collection 

of information as defined by the PRA. 

Certain provisions of Commission rule 

36.3 impose new regulatory and 

reporting requirements on ECMs, 

resulting in information collection 

requirements within the meaning of the 

PRA. OMB previously has approved and 

assigned OMB control number 3038– 

0060 to this collection of information. 

b. Cost-Benefit Analysis 

Section 15(a) of the CEA 37 requires 

the Commission to consider the costs 

and benefits of its actions before issuing 

an order under the Act. By its terms, 

section 15(a) does not require the 

Commission to quantify the costs and 

benefits of an order or to determine 

whether the benefits of the order 

outweigh its costs; rather, it requires 

that the Commission ‘‘consider’’ the 

costs and benefits of its actions. Section 

15(a) further specifies that the costs and 

benefits shall be evaluated in light of 

five broad areas of market and public 

concern: (1) Protection of market 

participants and the public; (2) 

efficiency, competitiveness and 

financial integrity of futures markets; (3) 

price discovery; (4) sound risk 

management practices; and (5) other 

public interest considerations. The 

Commission may in its discretion give 

greater weight to any one of the five 

enumerated areas and could in its 

discretion determine that, 

notwithstanding its costs, a particular 

order is necessary or appropriate to 

protect the public interest or to 

effectuate any of the provisions or 

accomplish any of the purposes of the 

Act. The Commission has considered 

the costs and benefits in light of the 

specific provisions of section 15(a) of 

the Act and has concluded that the 

Order, required by Congress to 

strengthen federal oversight of exempt 

commercial markets and to prevent 

market manipulation, is necessary and 

appropriate to accomplish the purposes 

of section 2(h)(7) of the Act. 

When a futures contract begins to 

serve a significant price discovery 

function, that contract, and the ECM on 

which it is traded, warrants increased 

oversight to deter and prevent price 

manipulation or other disruptions to 

market integrity, both on the ECM itself 

and in any related futures contracts 

trading on DCMs. An Order fining that 

a particular contract is a SPDC triggers 

this increased oversight and imposes 

obligations on the ECM calculated to 

accomplish this goal. The increased 

oversight engendered by the issue of a 

SPDC Order increases transparency and 

helps to ensure fair competition among 

ECMs and DCMs trading similar 

products and competing for the same 

business. Moreover, the ECM on which 

the SPDC is traded must assume, with 

respect to that contract, all the 

responsibilities and obligations of a 

registered entity under the CEA and 

Commission regulations. Additionally, 

the ECM must comply with nine core 

principles established by section 2(h)(7) 

of the Act—including the obligation to 

establish position limits and/or 

accountability standards for the SPDC. 

Amendments to section 4(i) of the CEA 

authorize the Commission to require 

reports for SPDCs listed on ECMs. These 

increased responsibilities, along with 

the CFTC’s increased regulatory 

authority, subject the ECM’s risk 

management practices to the 

Commission’s supervision and oversight 

and generally enhance the financial 

integrity of the markets. 

The Commission has concluded that 

ICE’s PER contract, which is the subject 

of the attached Order, is not a SPDC; 

accordingly, the Commission’s Order 

imposes no additional costs and no 

additional statutorily or regulatory 

mandated responsibilities on the ECM. 

c. Regulatory Flexibility Act 

The Regulatory Flexibility Act 

(‘‘RFA’’) 38 requires that agencies 

consider the impact of their rules on 

small businesses. The requirements of 

CEA section 2(h)(7) and the Part 36 

rules affect exempt commercial markets. 

The Commission previously has 

determined that exempt commercial 

markets are not small entities for 

purposes of the RFA.39 Accordingly, the 

Chairman, on behalf of the Commission, 

hereby certifies pursuant to 5 U.S.C. 

605(b) that this Order, taken in 

connection with section 2(h)(7) of the 

Act and the Part 36 rules, will not have 

a significant impact on a substantial 

number of small entities. 


sroberts on DSKD5P82C1PROD with NOTICES
24626 Federal Register / Vol. 75, No. 86 / Wednesday, May 5, 2010 / Notices 

40 7 U.S.C. 1a(29). 

1 74 FR 52186 (October 9, 2009). 

2 Incorporated as Title XIII of the Food, 

Conservation and Energy Act of 2008, Public Law 

110–246, 122 Stat. 1624 (June 18, 2008). 

3 7 U.S.C. 1a(29). 

4 74 FR 12178 (Mar. 23, 2009); these rules became 

effective on April 22, 2009. 

V. Order 

a. Order Relating to the Permian 

Financial Basis Contract 

After considering the complete record 

in this matter, including the comment 

letters received in response to its 

request for comments, the Commission 

has determined to issue the following 

Order: 

The Commission, pursuant to its 

authority under section 2(h)(7) of the 

Act, hereby determines that the Permian 

Financial Basis contract, traded on the 

IntercontinentalExchange, Inc., does not 

at this time perform a significant price 

discovery function. In this regard, the 

Permian Financial Basis contract does 

not satisfy the material price reference, 

price linkage and material liquidity 

criteria for significant price discovery 

contracts. Consistent with this 

determination, the 

IntercontinentalExchange, Inc., is not 

considered a registered entity 40 with 

respect to the Permian Financial Basis 

contract and is not subject to the 

provisions of the Commodity Exchange 

Act applicable to registered entities. 

Further, the obligations, requirements 

and timetables prescribed in 

Commission rule 36.3(c)(4) governing 

core principle compliance by the 

IntercontinentalExchange, Inc., are not 

applicable to the Permian Financial 

Basis contract with the issuance of this 

Order. 

This Order is based on the 

representations made to the 

Commission by the 

IntercontinentalExchange, Inc., dated 

July 27, 2009, and November 13, 2009, 

and other supporting material. Any 

material change or omissions in the 

facts and circumstances pursuant to 

which this order is granted might 

require the Commission to reconsider its 

current determination that the Permian 

Financial Basis contract is not a 

significant price discovery contract. 

Additionally, to the extent that it 

continues to rely upon the exemption in 

Section 2(h)(3) of the Act, the 

IntercontinentalExchange, Inc., must 

continue to comply with all of the 

applicable requirements of Section 

2(h)(3) and Commission Regulation 

36.3. 

Issued in Washington, DC, on April 28, 

2010, by the Commission. 

David A. Stawick, 

Secretary of the Commission. 

[FR Doc. 2010–10339 Filed 5–4–10; 8:45 am] 

BILLING CODE P 

COMMODITY FUTURES TRADING 

COMMISSION 

Order Finding That the TETCO–M3 

Financial Basis Contract Traded on the 

IntercontinentalExchange, Inc., Does 

Not Perform a Significant Price 

Discovery Function 

AGENCY: Commodity Futures Trading 

Commission. 

ACTION: Final order. 

SUMMARY: On October 9, 2009, the 

Commodity Futures Trading 

Commission (‘‘CFTC’’ or ‘‘Commission’’) 

published for comment in the Federal 

Register 1 a notice of its intent to 

undertake a determination whether the 

TETCO–M3 Financial Basis (‘‘TMT’’) 

contract traded on the 

IntercontinentalExchange, Inc. (‘‘ICE’’), 

an exempt commercial market (‘‘ECM’’) 

under sections 2(h)(3)–(5) of the 

Commodity Exchange Act (‘‘CEA’’ or the 

‘‘Act’’), performs a significant price 

discovery function pursuant to section 

2(h)(7) of the CEA. The Commission 

undertook this review based upon an 

initial evaluation of information and 

data provided by ICE as well as other 

available information. The Commission 

has reviewed the entire record in this 

matter, including all comments 

received, and has determined to issue 

an order finding that the TMT contract 

does not perform a significant price 

discovery function. Authority for this 

action is found in section 2(h)(7) of the 

CEA and Commission rule 36.3(c) 

promulgated thereunder. 

DATES: Effective date: April 28, 2010. 

FOR FURTHER INFORMATION CONTACT: 

Gregory K. Price, Industry Economist, 

Division of Market Oversight, 

Commodity Futures Trading 

Commission, Three Lafayette Centre, 

1155 21st Street, NW., Washington, DC 

20581. Telephone: (202) 418–5515. Email: gprice@cftc.gov; or Susan Nathan, 

Senior Special Counsel, Division of 

Market Oversight, same address. 

Telephone: (202) 418–5133. E-mail: 

snathan@cftc.gov. 

SUPPLEMENTARY INFORMATION: 

I. Introduction 

The CFTC Reauthorization Act of 

2008 (‘‘Reauthorization Act’’) 2

significantly broadened the CFTC’s 

regulatory authority with respect to 

ECMs by creating, in section 2(h)(7) of 

the CEA, a new regulatory category— 

ECMs on which significant price 

discovery contracts (‘‘SPDCs’’) are 

traded—and treating ECMs in that 

category as registered entities under the 

CEA.3 The legislation authorizes the 

CFTC to designate an agreement, 

contract or transaction as a SPDC if the 

Commission determines, under criteria 

established in section 2(h)(7), that it 

performs a significant price discovery 

function. When the Commission makes 

such a determination, the ECM on 

which the SPDC is traded must assume, 

with respect to that contract, all the 

responsibilities and obligations of a 

registered entity under the Act and 

Commission regulations, and must 

comply with nine core principles 

established by new section 2(h)(7)(C). 

On March 16, 2009, the CFTC 

promulgated final rules implementing 

the provisions of the Reauthorization 

Act.4 As relevant here, rule 36.3 

imposes increased information reporting 

requirements on ECMs to assist the 

Commission in making prompt 

assessments whether particular ECM 

contracts may be SPDCs. In addition to 

filing quarterly reports of its contracts, 

an ECM must notify the Commission 

promptly concerning any contract 

traded in reliance on the exemption in 

section 2(h)(3) of the CEA that averaged 

five trades per day or more over the 

most recent calendar quarter, and for 

which the exchange sells its price 

information regarding the contract to 

market participants or industry 

publications, or whose daily closing or 

settlement prices on 95 percent or more 

of the days in the most recent quarter 

were within 2.5 percent of the 

contemporaneously determined closing, 

settlement or other daily price of 

another contract. 

Commission rule 36.3(c)(3) 

established the procedures by which the 

Commission makes and announces its 

determination whether a particular ECM 

contract serves a significant price 

discovery function. Under those 

procedures, the Commission will 

publish notice in the Federal Register 

that it intends to undertake an 

evaluation whether the specified 

agreement, contract or transaction 

performs a significant price discovery 

function and to receive written views, 

data and arguments relevant to its 

determination from the ECM and other 

interested persons. Upon the close of 

the comment period, the Commission 

will consider, among other things, all 

relevant information regarding the 

subject contract and issue an order 

announcing and explaining its 


sroberts on DSKD5P82C1PROD with NOTICES